Pending court ruling on ferry overshadows environmental review

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POSTED: Sunday, January 11, 2009

Residents challenging the validity of special legislation that exempted the Hawaii Superferry from state laws can justifiably regard an environmental review of the ship's operation as inconsequential at this point in the messy episode.

Having argued that the legislation, called Act 2, violated the state Constitution by conferring special exemptions and benefits on the ferry company to the exclusion of others, they are hoping that the Supreme Court will rule in their favor on the issue.

The Department of Transportation released its draft environmental impact statement last week. The review looked at development at four state harbors and ferry operations and catalogued the potential for negative effects on recreational and cultural practices, endangered whales, traffic and highways. It also considered the spread of invasive species and pests such as fire ants and varroa mites. Some were assessed as negligible while others were deemed significant but could be mitigated, according to the review.

Many of the mitigative measures would rely on state agencies, such as the Department of Land and Natural Resources and the Department of Agriculture, either through enforcement of current regulations or heightened inspections, at a cost to taxpayers. But whether the state, which seldom seems to fund these divisions adequately, and the agencies that lack the capabilities for even current enforcement levels can handle additional biosecurity duties is questionable.

Some negative effects, such as the loss of surfing, fishing and canoe paddling spots at Kahului harbor, however, could not be reversed if the ferry operations were to move to a new docking site. In addressing this “;unresolved issue,”; the report says the state must weigh the conflicting uses and make hard choices based on the greater benefits.

The report acknowledges the dozens of exceptional conditions under which the ferry has been ordered to operate and supports continuation of them. These include avoiding waters where whales tend to gather, slowing down when passing through the marine sanctuary off Maui and posting lookouts for whales.

The review also points out that the ferry provides an option for interisland travel and the potential for use in an emergency, both benefits for the state.

The state will take written comments on the draft statement until Feb. 23 and the public should take the opportunity to weigh in. The final document is scheduled for completion by the end of June.

At that time, the special legislation is supposed to be repealed, but lawmakers could be asked to extend the law so that other ferry companies can take advantage of it. Given the current situation, extending the legislation would be risky.